The term emergency law is often used in comments and media reports on the corona virus – as an instrument to cope with extraordinary situations as we are experiencing right now. But in the Federal Constitution this term does not exist at all. A conceptual clarification is therefore necessary. The legal basis of the emergency law nowadays is regulated in Article 165, 173 and 185 of the Federal Constitution.
Police emergency law according to Article 173
and 185 of the Federal Constitution
Articles 173 and 185 of the Federal Constitution contain a general police clause. Both the National Council and Council of States as the legislative as well as the Federal Council as the executive authority can take measures for quick remedial action in “exceptional circumstances” as in “serious disturbances of the public order”. A pandemic is undoubtedly one of them. This clause is not new. It is already in the Federal Constitution of 1874. But the measures and programmes taken must be within the framework of the constitution and the legal system. The general clause does not allow new laws.
Over the past few weeks, we have witnessed the Federal Council and the Parliament playing together in this frame: As there was no time for debates and parliamentary decisions – the councils had broken off their session – the Federal Council on 13 March issued with the COVID-19 Regulation numerous provisions and extensive support programmes. After that this happened repeatedly again. On 4 May the Parliament, in a special session, came back and confirmed or amended most of it.
Also necessary was an immediate change of the Aviation Act in order to be able to rapidly support apart alongside Swiss and Edelweiss also the flight-related companies with 600 million francs. The Parliament adjusted the law, limited it until 2025 and immediately brought it into force under the urgency procedure. This brought another article of the emergency law – Article 165 – into effect: the law comes into force immediately, but the people has the possibility to take the referendum in retrospect (which the Greens have already announced). – This part of emergency law has a longer history, which goes back to the time of the creation of the Federal Constitution and provides information on the nature of direct democracy in Switzerland.
Urgency in the legislative procedure under
Article 165 of the Federal Constitution
The 1874 Federal Constitution stated in Article 89 the by the standards of the time revolutionary sentence: “Federal laws and generally binding federal decrees that are not of an urgent nature, should moreover be presented to the people to accept or reject, if it is demanded by 30,000 Swiss citizens entitled to vote or by eight cantons”. This article should in future shape the Swiss legal system like no other. In this way 200 referendums on federal laws or federal decrees came into being. But the constitutional article from the beginning also contained a potential for conflict: Nowhere was defined what “urgent nature” means. The Parliament could decide with a simple majority, whether to declare a law urgent and immediately put it into effect without allowing a referendum. This uncertainty existed from the beginning and should often cause unrest among the population. Questions were heard like: Why can’t we vote on it, almost every law is urgent, otherwise Parliament wouldn’t pass it? – Until the First World War the Parliament didn’t make use of this possibility.
That changed after the First World War and particularly during the bad patch of the great economic crisis of the thirties. Until the Second World War, the Parliament classed 150 temporary federal decrees (which were all of an economic nature) as urgent and thus withdrew them from the referendum. The majority of the population appreciated and accepted the extraordinary measures in the crisis because it was often a matter to help the farmers and small businesses to reduce unemployment, to save the people’s bank, to help out the watch or textile industry and such like. But the longer this condition lasted, the more the development was also critically judged because it restricted civil rights and liberties too much and interfered with federalist solutions. The then constitutional law teacher Professor Zaccaria Giacometti found clear words for this. He warned against the abuse of the right of emergency and spoke of “parliamentary absolutism” or even “parliamentary dictatorship”. It did not stop at skepticism: alone in the thirties, five popular initiatives were submitted which all had the target to set limits to the right of urgency (Wüthrich 2020, pp. 110–123). A group of constitutional law teachers for example suggested that a kind of constitutional court should be established which should judge whether the exclusion of the referendum really was justified or not. Two further initiatives were added after the war. – One thing quickly became clear: Not only federal decisions were urgent during the crisis, but also the desire in the population to find a solution for the emergency law which respects federalism and the civil rights and liberties.
Power of attorney based
on parliamentary decision
During the Second World War there was another kind of emergency law. The Parliament decided on a kind of wartime mandate (proxy decision of 30 August 1939). It allowed the Federal Council to lead Switzerland at war largely without parliament. But even in this difficult time, numerous popular initiatives were submitted (see article "Politics during crisis – crisis in politics?"), and there were even important referendums.
Two examples: In 1940 the people voted on a draft that would to set up a far reaching military prep school for male adolescents. The people said no. In 1942 it was voted on a people’s initiative of the Social Democrats SP, which demanded the popular election of the Federal Council. The SP protested that as a big party with a strong voter base, it had not yet representatives in the government. The people voted no, but a short time later – 1943 – the social democrat Ernst Nobs, Mayor of Zurich, was elected Federal Councillor by the Parliament.
The authority of the Federal Council went very far. In 1940 it provisionally introduced the military tax (the later direct federal tax) and in 1941 the goods turnover tax "Wust" (the later value added tax VAT). These new taxes should help to reduce the extensive precautionary and military measures. Overall, the Federal Council issued due to his power of attorney until 1945 approximately 500 federal decrees.
Democratisation of emergency law
After the war, on 1 June 1945, the Federal Council submitted to Parliament to remove its extraordinary powers, to grant, however, the authorisation to “exceptionally take measures that are unavoidable for the security of the country”. The Parliament approved it unanimously. But not everyone agreed with this. Especially citizens from the French-speaking Switzerland (Ligue Vaudoise) submitted two popular initiatives: one wanted to entirely finish the power of attorney of the Federal Council. The other one was called “Return to direct democracy” and had the ambitious goal of democratising the emergency law which had worked out only insufficiently in the 1930s. Zaccaria Giacometti, Professor of Constitutional Law and Rector of the University of Zurich from 1952 to 1954 was involved (Wüthrich 2020, S. 175–186). The former resolved itself because “martial law” became soon obsolete in the beginning booming economy. The other was accepted by the people in 1949. Its text is contained in Article 165 of the Federal Constitution and is applied today: Parliament can still adopt urgent legislation and set it into force immediately. But it will be voted on afterwards – optional or mandatory (if the constitutional basis is missing). – This regulation respects the rights of the people and fits into the direct democratic coined Swiss legal system. With this, a long lasting debate came to their close.
The democratised “right of emergency” was often applied. In the sixties and in the seventies the Parliament enacted eleven urgent and temporary federal decrees, all of which took effect immediately. They all were in violation of the freedom of trade and industry HGF and thus had no constitutional basis. However, they had a completely different content than the decisions which the Parliament adopted in the thirties with the objective of fighting unemployment. There was a boom now and the authorities were trying to dampen it and cool down the hot running economy. So they temporarily forbade the construction of luxurious single-family houses (in order to get free the fully streched construction capacities for infrastructure and normal housing construction). Or they forbade to create new jobs (by ceiling the number of staff in the companies). The unemployment was 0.0 per cent, and hundreds of thousands of workers immigrated from foreign countries. The federal decrees restricted the raising of loans to discourage new investments. Or they took measures to protect the environment. Many Swiss lakes were so polluted that you no longer could swim. In addition, decisions were made to combat inflation and to protect the currency. All these federal decrees had no constitutional basis, so that it regularly came to mandatory voting within a year (see Rhinow 2011, p. 36–37). The people said yes eleven times and thereby bolstered the authorities. This was important because it is not easy for the authorities to make decisions in emergency situations that meet the requirements and which are also proportionately that is, do not restrict personal freedom and the democracy too much.
In a press release on 29 April 2020, the Federal Council announced its decision from 19 April to convert into urgent federal legislation the emergency decrees ithad issued to deal with the corona crisis. The consultation process is supposed to take place as early as June. The Federal Council announced to submit the message to Parliament as early as September. Its justification: “For emergency decrees based directly on the Federal Constitution, the procedure for converting them into a parliamentary decree must be initiated after a period of validity of six months at the latest. If the Federal Council does not adopt a message within this period, the emergency decrees in question will cease to be valid and cannot be extended. ” According to the emergency procedure this law or these laws shall be implemented immediately. In case they lack a constitutional basis, Article 165 paragraph 3 of the Federal Constitution stipulates a mandatory or otherwise optional vote within one year afterwards (as required by the popular initiative “Return to direct democracy” of 1949).
Will the forthcoming crisis votes provide the authorities the support they need, as it was the case with the eleven votes on urgent law in the 1960s and 1970s (all of which ended with a yes)? Today’s votes are likely to attract worldwide attention, as many countries are challenged to manage the consequences of the pandemic in a democratic way and to learn the lessons from it.
In 1949, the circle around Zaccaria Giacometti might not have imagined how much their popular initiative one day would contribute to directly involving the population in the political decision-making process, even during the crisis.
“Awakening begins in the mind. Will there be an atmosphere of departure or even a heyday of direct democracy – as it was the case during the difficult times of the 1930s and of the Second World War? […] We can support the coming awakening by refocussing on the foundations of our state system and also by drawing on the experiences of previous generations.”
Awakening begins in the mind. Will there be an atmosphere of departure or even a heyday of direct democracy – as it was the case during the difficult times of the 1930s and of the Second World War? Proposals are still on the table today as to what we could do better in Switzerland. There are some things that we will judge somewhat differently than in the years before corona. Important referendums are already scheduled for September: The popular initiative on moderate immigration (limitation initiative) and several referendums on the procurement of combat aircraft, on paternity leave, on a new hunting law (which makes it easier to shoot wolves) and on tax deductions for children.
We can support the coming awakening by refocussing on the foundations of our state system and also by drawing on the experience of previous generations, which has ensured that politics today is so exciting and full of life. •
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